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G054773 (Cal. Ct. App. Sep. 7, 2018)



JIN HEE HA, Plaintiff and Respondent, v. LINDA HONG, Defendant and Appellant.

Daniel E. Park Law Corporation, Daniel E. Park and Christopher C. Cianci for Defendant and Appellant. Department of Industrial Relations, Division of Labor Standards Enforcement and Max D. Norris for Plaintiff and Respondent.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00896049) OPINION Appeal from a judgment of the Superior Court of Orange County, Timothy J. Stafford, Judge. Affirmed. Daniel E. Park Law Corporation, Daniel E. Park and Christopher C. Cianci for Defendant and Appellant. Department of Industrial Relations, Division of Labor Standards Enforcement and Max D. Norris for Plaintiff and Respondent.

In July 2015, Jin Ha filed a claim with the California Labor Commissioner against Linda Hong for unpaid wages. The matter was heard by the commissioner on November 1, 2016, and a written order awarding Ha $129,147.08 was entered against Hong on December 14, 2016.

Hong filed a written appeal of the commissioner's order on December 21, 2016, pursuant to Labor Code section 98.2. But she did not post a bond with her appeal. An appeal of a commissioner's order goes to the superior court for hearing de novo (§ 98.2, subd. (a)), and Hong's hearing was set for March 16, 2017.

All further statutory references are to the Labor Code unless otherwise indicated.

A month before the hearing the commissioner filed a motion to dismiss Hong's appeal based on the lack of a bond. On March 3, 2017, Hong posted a bond for the amount of the commissioner's award, but the day before the March 16 hearing, Hong filed papers asserting that under section 995.240 of the Code of Civil Procedure the trial court had authority to waive the bond requirement for her indigency. She said she had been unable to afford a bond at the time of the award and had difficulty obtaining a letter of credit for a bond at her bank. The trial court rejected the argument based on the language of section 98.2, and dismissed Hong's action without prejudice after a brief hearing on March 16. Hong timely filed this appeal from the judgment of dismissal.

We affirm. The text of section 98.2 is plain. Posting a bond or undertaking is a jurisdictional prerequisite for filing an appeal of a commissioner's order. Subdivision (b) of the statute provides: "As a condition to filing an appeal pursuant to this section, an employer shall first post an undertaking with the reviewing court in the amount of the order, decision, or award." (Italics added.)

The text of section 98.2 wasn't always so plain. In the mid-2000's, the Court of Appeal, in Progressive Concrete, Inc. v. Parker (2006) 136 Cal.App.4th 540 (Progressive Concrete), had interpreted a prior version of section 98.2 to allow for the possibility of an appeal without filing a bond. But in 2010, Assembly Bill 2772 amended section to 98.2 so as to make absolutely clear that posting a bond was a jurisdictional prerequisite for appealing a Labor Commissioner order. (See Palagin v. Paniagua Construction, Inc. (2013) 222 Cal.App.4th 124, 135-136.) In fact, the whole point of the bill was to legislatively overrule Progressive Concrete. (Id. at p. 136.)

In this case Hong thus faces the double whammy of inescapably plain and preclusive statutory language plus pellucid legislative history. Both show the Legislature intended the filing of a bond to be a prerequisite to an appeal from a commission order. It is hard to see, then, how the trial court could have erred in dismissing her appeal.

The loose end we face now is how section 995.240 of the Code of Civil Procedure fits with the amended version of section 98.2. Does it in some way override or create an implied exception to the language of section 98.2, subdivision (b)? We note that part of the reasoning in Progressive Concrete was that Code of Civil Procedure section 995.240 provides an "indigency exception to section 98.2." (Progressive Concrete, supra, 136 Cal.App.4th at pp. 551-552.) Progressive Concrete thought that if the Legislature had wanted section 98.2's bond requirement to be "mandatory and jurisdictional," it would have expressly precluded the application of Code of Civil Procedure section 995.240 to that bond requirement. (Id. at p. 552.)

But Code of Civil Procedure section 995.240 is a part of the general Bond and Undertakings Law enacted in the early 1980's to provide uniform rules and procedures governing bonds. (See Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 740, fn. 8.) The statute generally allows a court to waive a provision for a bond "in an action or proceeding" - that is, any action or proceeding - when "the principal is indigent and is unable to obtain sufficient sureties."

By contrast, the current provision of section 98.2 was enacted in 2010 and is specifically targeted at appeals from Labor Commissioner orders in unmistakeable language, in a context in which both the Legislature and our Supreme Court have expressed concern for the vulnerability of employees who are typically dependent on wages. (See Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 837, citing In re Trombley (1948) 31 Cal.2d 801, 809-810.)

The two rules of statutory construction applicable to these two statutes are: (1) When two statutes conflict, the later statute controls over an earlier one. (Cross v. Superior Court (2017) 11 Cal.App.5th 305, 322.) And (2) when two statutes conflict, the more specific one controls over the more general one. (State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 960-961.). The upshot is that Code of Civil Procedure section 995.240 cannot apply to section 98.5. The putative harshness of this result is easily avoidable.

An employer that perceives itself as indigent can file its request for an indigency waiver under Code of Civil Procedure section 995.240 prior to, or contemporaneously with, its appeal from the commissioner's order. (See Burkes v. Robertson (2018) ___ Cal.App.5th ___, ___ (Burkes) ["an indigent employer is only required to seek a waiver within the time provided"].) To be sure, a prudent (but indigent) employer might have to make a prior estimate of the worst case scenario to emerge from a commission proceeding and begin the process of documenting its inability to pay for a bond or obtain sufficient sureties in the short time before it files its appeal. But that course of action would provide possible relief. The "standard rules of statutory construction . . . obligate the court to attempt to reconcile or harmonize conflicting statutory provisions in an effort to give effect to all provisions if it is possible." (Taxpayers To Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 764.) If the Legislature thinks this harmonization is too harsh on indigent employers who might have arguably meritorious appeals from commission proceedings, it can, of course, modify the law.

At oral argument before this court, counsel for Hong said that Hong could not seek a waiver at the time because she was not indigent. As a concession, this statement would be dispositive of this whole appeal - Code of Civil Procedure section 995.240 only allows waivers for indigent parties. But because it wasn't part of the record, we do not base our result on it. --------

In this case, however, we must conclude the trial court got it right in concluding it had to dismiss Hong's appeal because of the lack of a bond or request for excusal from that bond filed prior to her appeal. Ha shall recover her costs on appeal.